The N.S.A.’s Spying on Muslim-Americans

What counts as an American name? A report by Glenn Greenwald and Murtaza Hussain, at the Intercept, says that the N.S.A. and F.B.I. have “covertly monitored the emails of prominent Muslim-Americans,” and names five of them. They are real Americans—men like Nihad Awad, the executive director of the Council on American-Islamic Relations, and Hooshang Amirahmadi, a professor at Rutgers. Then there is a fake name that appears in another document cited in the Intercept piece, apparently related to N.S.A. training—someone’s idea of a useful example of a potential surveillance target: “Mohammed Raghead.”

The Intercept found the addresses of the Americans on a spreadsheet called “FISA Recap.” The document’s title suggests that the N.S.A. at least got warrants from the Foreign Intelligence Surveillance Act court, which operates in secret, before it tracked and, presumably, read e-mails connected to these addresses. That raises some questions about the court and its standards. The N.S.A. is meant to spy on foreigners, not those whom are designated as “U.S. persons” (citizens and legal residents). The exception is when the agency has enough evidence to persuade the FISA judges that its American targets are involved in illegal foreign-terrorism activities. As the Intercept notes, we do not know what evidence the government did or did not have. We are often told that the FISA court is extraordinarily careful. Here is a measure of that care: one of the headings on the spreadsheet is “nationality.” For an address belonging to Faisal Gill, a veteran of the Navy and the Bush Administration, who has been a U.S. person since childhood, that entry was “unknown.” The spreadsheet contained fifty-five hundred and one entries; four hundred and eighty-two were identified as “unknown.”

“Unknown” can sound mysterious; or maybe it’s just another word for reckless disregard for the privacy of Americans. In a report in the Washington Post over the Fourth of July weekend, Barton Gellman, Julie Tate, and Ashkan Soltani examined a “large cache of intercepted communications.” (Like the “FISA Recap,” they were among the documents leaked by Edward Snowden, a former N.S.A. contractor.) In this cache, which “came from domestic NSA operations,” the Post found that nearly half the files “contained names, e-mail addresses or other details that the NSA marked as belonging to U.S. citizens or residents.” The N.S.A. is supposed to “minimize” the harm when it “incidentally” spies on Americans; the Post found nine hundred instances, in this sample, in which that was not done. And even minimizing can leave plenty in the government’s files—never mind that some agent may have already read about your views on your boss or your friends or your political associations before having the belated revelation that you are an American.

“Many other files, described as useless by the analysts but nonetheless retained, have a startlingly intimate, even voyeuristic quality,” according to the Post. “The daily lives of more than ten thousand account holders who were not targeted are catalogued and recorded nevertheless.” (Some other information did look very useful, but came with “collateral harm to privacy on a scale that the Obama administration has not been willing to address.”) The cache contained chat transcripts, medical records, and “academic transcripts of schoolchildren”: “Scores of pictures show infants and toddlers in bathtubs, on swings, sprawled on their backs and kissed by their mothers.” Do acts of intimacy have to double as performances of innocence for the N.S.A.?

The activities that expose Americans to surveillance are explicitly not supposed to include actions related to the First Amendment, like speech or advocacy, or, say, running for office, which Faisal Gill was doing at the time he was spied on. (He got the Republican nomination for a seat in Virginia’s legislature.) A couple of the men have sued the government or were involved with groups that did, or have been the attorneys for foreign governments in U.S. courts. Nihad Awad has been viewed as controversial because of statements, years ago, seen as sympathetic to Hamas. None of this, according to what we’ve been told are FISA’s extraordinary standards, is supposed to be enough to let someone in the government read the e-mails that people send at work, or to clients, or to someone they love. A reason for the standards is the miserable experience that the United States has had with domestic spying; some relevant names there are Martin Luther King, Jr., and J. Edgar Hoover.

What is most striking about theses five men is how public their lives have been. They have spoken to Congress or sat on commissions or stood, as lawyers, in courtrooms—the public kind, where people can walk in and listen to what’s going on, unlike in the FISA court. Another thing we are often told is that we need the N.S.A. and FISA because of all the people operating in dark places, who will only ever be identified if, for example, everyone’s phone records are collected and analyzed. When they are, who is the government looking for? “Mohamed Raghead”? (The slur isn’t a one-off: another document, made public last year, created to demonstrate how to query a database in order to track communications, used a character named “Mohamed Badguy.”)

What may connect the Intercept’s two revelations— about the spying on community leaders and the language of the document—is the way that the N.S.A. reads a name that its analysts associate with foreign lands. The fear is that less familiar configurations of vowels and consonants always blur into words like “Badguy.” That’s how they’re read, remembered, and stored—an effect that, somehow, has not yet been minimized.

In the day since the Intercept report was released, there has been, appropriately enough, an angry response from civil-rights groups and others. An N.S.A. spokeswoman responded by saying, according to the Post, that the agency “has not and would not approve official training documents that include insulting or inflammatory language. Any use of racial or ethnic stereotypes, slurs, or other similar language by employees is both unacceptable and inconsistent with NSA policy and core values.” How about N.S.A. practice, and what seems to inflame that? It is telling that an agency of code-breakers did not feel the need to even speak in code when it came to conjuring up enemies. A White House spokeswoman told the Guardian that it had asked for “an assessment of intelligence community policies, training standards or directives that promote diversity and tolerance, and as necessary, make any recommendations changes or additional reforms.” This cannot just mean that Muslim Americans are still spied on in a way that compromises their rights—but by agents who are more polite, and watch their language.

That may not stop agents from watching ours. The Post noted that one of the tests that analysts used for whether someone was a “U.S. person” was if they had e-mails “written in a foreign language, a quality shared by tens of millions of Americans.” Asim Ghafoor, one of the targets whom the Intercept spoke to, noted that many other lawyers had Saudi clients, as he did. At some point, he imagined, someone at the N.S.A. would see a prominent person on a list and wonder, “Why are we tapping” this person: “But Asim Ghafoor—‘Oh, well he’s Muslim.’” Is this a problem with an American name?

Photograph by Robert Nickelsberg/Getty.

Amy Davidson Sorkin, a New Yorker staff writer, is a regular contributor to Comment for the magazine and writes a Web column, in which she covers war, sports, and everything in between.